Judges who upheld Cooper’s first challenge to Elections-Ethics merger dismiss his second try

A three-judge panel has unanimously dismissed Gov. Roy Cooper’s challenge to a new state law that would merge the State Board of Elections and State Ethics Commission.

The ruling was based upon the judges’ determination that they did not have authority to hear the case (what the Rules of Civil Procedure refer to as “subject matter jurisdiction”). The court’s order was released by legislators on Twitter shortly after it was signed by the judges yesterday afternoon.

“Today, the three-judge panel swiftly rejected Roy Cooper’s latest attempt to drag his political battles into the courtroom – and instead delivered a victory to North Carolina voters, who should now expect their elections and ethics laws to be enforced fairly and with bipartisan cooperation,” Berger and Moore stated. “We encourage the Governor to accept this result and abandon his taxpayer-funded pursuit of total control of the board responsible for regulating his own ethics and campaign finance conduct.”

Cooper’s spokesman, Ford Porter, indicated in a statement there would be an appeal.

“The decision that the court doesn’t have jurisdiction to hear this case is completely inconsistent with this panel’s own ruling in March and with the Supreme Court’s decision in McCrory v Berger,” he said. “It looks like the threats from the legislature had an effect on these judges, and we believe the higher courts will respond differently in order to protect access to the ballot box for North Carolina voters.”

Attorneys for the two sides argued Thursday for the second time this year about whether a law enacted by state lawmakers (in this case, Senate Bill 68) was constitutional or if legislators overstepped their authority in another power grab targeting the Governor.

The three-judge panel appointed to hear the case – Judges Jesse Caldwell III, a Democrat who presides in Gaston County; Todd Burke, a Democrat who presides in Forsyth County; and Jeffery Foster, a Republican who presides in Pitt County – already struck down a similar law in March, mainly because the legislature would have shared appointment power with Cooper over the new Board.

Republicans argued that the new bill was written to address judges’ concerns in their order striking down a law contained in a similar bill (Senate Bill 4) earlier this year.

The difference between the two bills is that the eight-member “bipartisan” board under Senate Bill 68 would require a five-member quorum (a simple majority) for election issues. Senate Bill 4 required a six-member quorum. Ethics issues would still require a six-member quorum under the law in Senate Bill 68.

The other difference is that Cooper will be able to appoint all eight members of the new board with recommendations from the two majority political parties. Members of the new board will be split between Democrats and Republicans.

Greensboro attorney Jim Phillips, one of Cooper’s attorneys, argued that because Cooper would not be able to choose the majority of the new Board and would have to choose from a list of candidates, he would be limited.

“The Governor has to have enough control over the people of the board,” Phillips said. “He has to be able to choose people who have his priorities and views.”

The judges were wholly engaged throughout all attorneys’ arguments but were dubious about whether Cooper’s attorneys were posing constitutional questions or political questions, the latter of which the court cannot take on.

“If this is a political question, the last challenge would have been a political question. If this is a political question, every separation of powers case is a political question,” Phillips told them. “Whether the General Assembly is carrying out some of the executive branch’s duties, which is as the court said, one kind of violation, or if the General Assembly through its legislation has prevented the Governor from carrying out his duties – even if they don’t take it themselves – the court says that’s a separation of powers violation.”

Another major issue with the new Board, Phillips said, is that it prevents Cooper from appointing the executive director by allowing the General Assembly to do it with the likelihood – because of the language of the bill – that she will serve indefinitely.

Legislators plan to appoint Kim Strach, who is the Board of Elections current executive director. She was initially hired by the Board of Elections on a 3-2 partisan vote following former Gov. Pat McCrory’s election and appointment of a majority Republican board.

The new bipartisan board would have to have a majority vote for someone else to take her place.

“We have to remember that under this new law, the executive director, as the state chief elections officer, would wield substantial power independent of the Board,” Phillips said.

He encouraged the judges to look at every part of the case, not just one segment. He said it’s not the merging of the Board of Elections and the Ethics Commission that is the problem; it’s the structure of the board, especially with the executive director component.

Noah Huffstetler III, a Raleigh attorney representing Senate President Pro Tem Phil Berger and House Speaker Tim Moore, argued that Cooper’s challenge was political and “the judiciary should rise above political questions.”

“I would reiterate that the real issue here is not a separation of powers challenge but simply a bid to control the elections process in a way that no governor has been able to,” he said.

He said that since 1901, the State Board of Elections has been recognized as an independent, regulatory, quasi-judicial agency, and that if Cooper got the power he sought over the board, it would be unprecedented.

Huffstetler and legislative leaders’ other attorney, Martin Warf of Raleigh, also argued that Cooper’s arguments were speculative due to their contention that he can’t prove the new board wouldn’t function or prevent him from faithfully executing the laws.

“The question is does it infringe too much on the Governor’s power to execute laws?” Warf asked. “Governors don’t always get to execute laws the way they want to.”

He added that Cooper needed to come to the table with more to show that Senate Bill 68 was unconstitutional beyond a reasonable doubt.

Phillips emphasized his argument that the constitutional issue is not what the new board will do but how Cooper can run that board, his “functions, powers and duties” under the challenged law.

Cooper’s other attorney, Dan Smith, also of Greensboro, argued that the new statute violates the non-delegation doctrine of the North Carolina Constitution.

If Cooper does appeal the case, the next court likely to hear arguments would be the Court of Appeals, though it should be noted that the framework for appeals has been shifting over the past several months under this legislature.

About the author

Melissa Boughton, Courts and Law Reporter, joined N.C. Policy Watch in September 2016. She covers local, state and federal courts and writes about key decisions that impact the lives of North Carolinians. Before joining the project, Melissa worked the crime and courts beats at The Post and Courier in Charleston, S.C.; The Winchester Star in Winchester, Va.; and The Kerrville Daily Times in Kerrville, TX. While reporting in Charleston, she covered the Emanuel church shootings and the police killing of Walter Scott. She was part of the team that was named a finalist for the 2016 Pulitzer Prize in breaking news reporting for coverage of Scott’s death.